Police v JW [2007] NSWLC 30

Local Court of New South Wales

CITATION: Police v JW [2007] NSWLC 30 JURISDICTION: Criminal PARTIES: Police JW FILE NUMBER: PLACE OF HEARING: Parramatta Local Court DATE OF DECISION: 08/23/2007 MAGISTRATE: CATCHWORDS: Application for final forensic procedures order-Crimes (Forensic Procedures) Act 2000 ss. 38 (1) (d) & 24-meaning of "upholding the suspect's physical integrity" s24 (4)-what matters may be considered-whether police conduct in making the interim order and carrying out the procedure can be considered particularly the right of an incapable suspect to an interview friend or lawyer under s54 –relationship between ss. 24 & 82 (inadmissibility of evidence following improper forensic procedure) Crimes (Forensic Procedures) Act 2000 LEGISLATION CITED: Interpretation Act 1987 Criminal Code Act 1983 (NT) Mental Health Act 1990 Rodway v The Queen (1990) 169 CLR 515 CASES CITED: JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799 Secretary, Department of Health and Community Services v JWB and SMB REPRESENTATION: A. Assaad, Police Prosecutor P. Krisenthal, Legal Aid Commission ORDERS: I make an order for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006.

Reasons for Decision

Background 1. Detective Sergeant Karol Blackley has applied for a forensic procedures order under s24, Crimes (Forensic Procedures) Act 2000 (the Act) for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW following the granting of an interim forensic procedures order. The application relates to a charge of Aggravated Sexual Assault against JW. The respondent JW opposes the making of the order under s24. 2. The interim forensic procedure order was made by Robert Lawton, an authorised officer at Parramatta Local Court on 23 December 2006.The forensic procedure was carried out on 23 December 2006 under the terms of the interim order but s38 (1) (d) of the Act prohibits the analysis of the samples until a final order is made under s24. That is the application before this court. 3. The hearing of the application has been delayed following a challenge by JW in the Supreme Court of New South Wales seeking to have the interim order set aside as being contrary to law and void, an order restraining this court from hearing the application, and order restraining the applicant from testing the samples taken and an order that the samples be destroyed: JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799. On 24 July 2007 Justice Simpson held that JW's challenge was premature, as this court had not yet made a final order. Issues 4. JW objects to the making of the order on the basis that the forensic procedure is not justified in the circumstances of this matter when balancing the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding JW's physical integrity, regard being had to the matters set out in s24 (4) of the Act (or s25 before its repeal-see below as to which provision is applicable). JW's submissions are: (a) the applicable test at the time of the hearing of this application is s24 which was inserted by the Crimes (Forensic Procedures) Amendment Act 2006 No 74 which commenced on 1 July 2007 and not the then s25 which was in force before 1 July 2007 (but was repealed by the amending Act) and when the application was made on 10 January 2007; (b) the applicant's conduct (simply followed a pro forma application; failed to contact an interview friend when it was reasonably practicable) was in neglect and careless of JW's "best interests" as an "incapable person" under s24 (4) (e); (c) further when the procedure was to be carried out JW requested a lawyer and there was a deliberate decision taken by the applicant not to provide that lawyer made by an incapable person because "the doctor was on a tight time schedule"; (d) the applicant could not needed to have known more about JW under s24 (4) (d) & (e) and the ease with which the applicant could have contacted JW's parents (including his request at the time of the carrying out of the forensic procedure for a lawyer) it was reasonably practicable for the applicant to contact and locate a interview friend as required by ss.33 (1) (b) or 54 (2). JW relies upon s104, which requires the applicant to satisfy this court on the balance of probabilities that it was not practicable to contact the interview friend or lawyer. JW submits that the transgression of the s24 (4) criteria is of the highest order and that this court should not allow the applicant the fruits of that transgression in circumstances where JW was at the "bottom" of those suspects who could exercise their rights given that he was an incapable person and the most likely to have his rights trampled on. The more vulnerable the suspect, the more stringent the court should be under s24 (4) and the court should be exemplary in refusing the application.